COMMENTARY

September 20, 1987|By DAVID BRODER, Washington Post Writers Group

So far, the Senate Judiciary Committee hearings have demonstrated that Supreme Court nominee Robert H. Bork has a sense of humor and a weakness for theories -- what he himself called ``rather cosmic and artificial theories.`` The first trait is generally acceptable, even in a judge, and the second is curable, if you take Bork at his word.

Neither in substance nor in style has Bork obliged his opponents by acting the part of the extremist they would like the country to see in Ronald Reagan`s choice for the third court vacancy of his presidency.

One inflammatory comment was made early in the hearings. Referring to Earl Warren, whose tenure as chief justice saw landmark decisions in civil rights and every other field of law, the speaker said he wanted ``to make it very clear that I don`t personally want to see another Warren court in my lifetime.``

Unfortunately for the Democrats, those unapologetically ideological words came not from the bearded Bork but from the pale-lipped Robert C. Byrd of West Virginia, their Senate majority leader.

To be sure, Bork has done his own share of bashing of the Warren Court. He has decried ``its eagerness to reform wide areas of national life`` and called it ``a judicial institution that is out of control.`` Those words appear in a 1968 Fortune magazine article entitled ``The Supreme Court needs a new philosophy,`` one of the main texts for those now arguing that Bork would be a dangerous threat if elevated to the highest bench.

It was in that article, among other places, that Bork expressed his support for California`s anti-open-housing referendum and his belief that it was only ``political speech`` which deserved First Amendment protection. Last week, Bork testified that he has modified those views. But most important, he said that he has outgrown the notion that it requires a philosophy -- new or otherwise -- to bring consistency to the law.

For long years, this 60-year-old man used his exceptionally keen mind to search for a rational standard that would explain everything, guide every decision. A socialist in his youth, he was converted at the University of Chicago into a fervent believer in free-market economics. Later he applied those same Adam Smith precepts to politics, emerging as a libertarian foe of governmental intervention in almost any phase of life. Libertarianism eventually gave way to a more conventional conservatism tracing its roots to the writings of Edmund Burke, Bork said.

In personal terms, there is abundant evidence that Bork is a warm, open, generous and sympathetic person who gives full play to the range of human emotions. But like others who have lived a life of the intellect as a scholar, teacher and writer, he often has been a slave to his theories. And when in the thrall of theory, he has managed to ignore the harsh reality of the pain real people experience when the law ignores their pleas for justice.

While blacks were protesting denial of access to hotels, restaurants and service stations -- daily degradations which made their lives incomparably more difficult and humiliated them in the eyes of their children --Bork was worrying about ``the principle`` that might be weakened if the government, in such cases, limited the property rights of white proprietors.

When the poll tax was being used to deny the franchise to Southern blacks and poor whites, Bork could not understand how ``in principle`` a modest levy, universally applied, could be found discriminatory.

Such high-mindedness is a luxury the Supreme Court could well forgo. But Bork has testified that he has abandoned his role as a philosopher since Reagan appointed him, a few years back, to the U.S. circuit court of appeals. ``Now I am in the business of deciding cases,`` he said.

``Much more caution is required in the courtroom,`` he told the judiciary committee. ``In a classroom argument,`` he said, ``no one gets hurt. In a courtroom, someone always gets hurt. That calls for much more restraint.``

On that principle, Bork should not be judged by his voluminous academic writings, in which he has often implied that he would like to attempt a radical restructuring of legal doctrine, whether or not it had the effect of repealing 30 years of progress toward a more just society. He should, instead, be appraised only by his circuit court opinions of the last five years which, taken as a whole, clearly fall within the mainstream conservative tradition of constitutional interpretation.

In that Fortune article, Bork wrote that, ``It is naive to suppose that the (Supreme) court`s present difficulties could be cured by appointing justices determined to give the Constitution its `true meaning,` to work at `finding the law` instead of reforming society. The possibility implied by those comforting phrases does not exist.`` He argued that only a rooted, philosophical effort to reconstruct the law under correct principles would suffice.

Bork now says he would be exactly the kind of justice those ``comforting phrases`` describe. The Senate needs to be sure of that.